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New Jersey’s drug possession laws can be harsh. Those charged with possession of a controlled dangerous substance (CDS) may be intimidated by the serious penalties they face, including prison and harsh fines. This is a difficult situation to be in, so it is critical that a person has expert legal counsel to help protect his/her rights.
What Constitutes Drug Possession?
What Constitutes Drug Possession?To be charged with possession, a person must have knowingly obtained, had on one’s person, or had constructive control over an illegal substance. This applies to serious drugs, such as cocaine and heroin, as well as prescription drugs (e.g. Xanax) if the person does not have a legitimate prescription.
The amount of the drug does not, per se, affect the level of the charge (except for marijuana). However, police can see certain quantities of drugs as evidence of intent to distribute. Drug distribution is a different charge in New Jersey and carries different penalties.
Penalties and Fines
Penalties and FinesMany people think that a first time possession charge will not carry a high penalty. This notion is completely wrong. Penalties depend on the type of drug and amount. For example, possession of less than 50 grams of marijuana carries a penalty of up to 6 months in jail and a fine of up to $1,000. Possession of more than 50 grams of marijuana can result in up to 18 months in prison and a fine of up to $25,000.
Possession of narcotics or controlled substances includes cocaine, heroin, methamphetamine, acid, ecstasy, GBH, and all other illegal narcotics, stimulants, hallucinogens, opiates, or depressants. This is a third-degree crime. Those convicted face more severe consequences (up to 5 years in prison and a fine of up to $35,000).
In addition, under N.J.S.A. 2C:35-16, a person convicted of a drug offense can also have his/her license suspended. In extreme cases, police may have permission to confiscate one’s vehicle.
Again, keep in mind that depending on how the drugs are packaged and/or the quantity of drugs one is caught with, the charges can be increased to possession with intent to sell.
How to Beat a Drug Possession Charge
How to Beat a Drug Possession ChargeThere are several strategies that a skilled criminal defense attorney can use in order to win at trial or get the possession charges dismissed. An attorney can file a motion to suppress any evidence that was unlawfully obtained.
People have a constitutional right against unreasonable searches and seizures. If drugs are discovered in a vehicle following a traffic stop, and the stop itself was unconstitutional or the search itself lacked probable cause, then the charges can be dismissed.
In addition, the prosecutor bears a heavy burden when proving beyond a reasonable doubt that the defendant was the one who possessed the drugs. As such, it may be possible to prevent the prosecutor from proving “possession.” For example, if more than one person was in a car or home when the drugs were discovered by police, then it may not be clear who the drugs belonged to. In such scenarios, it can be difficult to prove any one person had “possession.”
The exact defense against drug charges will depend on the specifics of the case. More importantly, a successful defense will require the help of a skilled attorney.
Case Law Analysis
Case Law AnalysisPossessing Drug Paraphernalia
Even if a person does not have drugs on them, he/she can be charged with a different kind of possession. A person caught with drug-related paraphernalia, such as a crack pipe, can be charged with possession of drug paraphernalia (N.J.S.A. 2C:36-2). Penalties include up to 6 months in jail and a fine of up to $1,000. Like other forms of possession, this can also result in a suspension of one’s driver’s license.
What Is Failure to Make a Lawful Disposition?
The statute for possessing drugs (2C:35-10) also includes a provision on failure to make a lawful disposition. This means a person who knowingly comes into possession of an illegal substance is required by law to surrender it to the nearest law enforcement officer. Failure to do so is a disorderly persons offense with a penalty of up to 6 months in jail.
College Students Caught with Drugs
It’s natural to want to experiment a bit while in college. But getting arrested for possession or for being under the influence of drugs (2C:35-10b) can see a potentially bright future tarnished or derailed.
Although in many ways still kids, college students charged with drug offenses will be charged as adults in New Jersey. Even if a person avoids prison, a drug conviction can result in losing scholarships and/or grants. In some cases, the school may expel the student. The conviction can also make it difficult to get a job , even if he/she manages to complete the degree.
Read more about the impact of drug convictions on college students here.
Possession with Intent to Sell
Selling or distributing drugs is, in many cases, a more severe charge than simply possession of drugs. In order to be charged with intent to sell, a person does not need to be trying to make money–simply giving drugs to another person can be considered “distributing” under the law.
Moreover, a person can be charged with intent to sell drugs even if there is no other person around to sell or give them to. For example, if the drugs are packaged in easily distributable containers or if the sheer quantity of drugs is more than a single person could reasonably consume, that can be evidence of an intent to distribute.
If you or someone you love has been charged with selling drugs, read our information page on this offense.
Selling Drugs in a School Zone
Even more serious than selling drugs in general is to sell them within 1,000 feet of a school zone. The most serious part of a charge of selling drugs on or near a school zone is that it is considered a separate offense from the charge of selling drugs. This means that a person accused of intending to sell drugs near a school can face penalties for at least two felony offenses. (To read more about these penalties and defenses, see Selling Drugs on or Near a School Zone in NJ.)
Possession of Heroin
Heroin is one of the most dangerous and addictive drugs a person can experiment with. A person found in possession of heroin or any other CDS (controlled dangerous substance) is facing serious legal trouble. The potential penalties for possession of heroin are severe and can include up to 5 years in prison and up to $15,000 in fines.
The good news is that there are ways to protect oneself from the worst penalties. Read our information page on heroin possession.
Possession of Opioids
Opioids are a class of drugs that act as pain relievers. They include drugs such as OxyContin, codeine, and fentanyl. Although they have legitimate medical use and are available by prescription, opioids are addictive. New Jersey and most other states heavily regulate opioid usage, which can result in a person being charged with drug possession even if he/she has a prescription. Refer to our page on opioid possession for more information.
Consequences for a First Offense
Consequences for a First OffenseA first offense of possession in New Jersey carries the same range of penalties as a person charged with a second or subsequent offense. While it is possible that a person charged for the first time may get away with a lighter sentence, it would be unwise to expect as much.
In some situations, a person may be able to avoid a conviction for possession by enrolling in a diversionary program (see below). Regardless, the best course of action for a first-time offender is to contact an experienced attorney to help fight the case.
Consequences for Juveniles
Consequences for JuvenilesTeenagers from all walks of life can innocently find themselves in a number of situations in which drugs are present. It could be at a party or by helping carry a backpack or other container for a friend. A child who has unknowingly come into possession of drugs or who has been incorrectly identified by police as the possessor of drugs urgently needs the help of a skilled attorney.
A conviction for possessing marijuana or other drugs can result in up to 2 years in a detention facility. Family court judges are keenly aware that kids can unwittingly find themselves around drugs. They are also quick to scrutinize claims of innocence when evidence to the contrary is strong.
An attorney can work hard to examine a child’s case, suppress illegally obtained evidence, and argue the facts to prevent a conviction. If a conviction does occur, the attorney can present a case for the lightest reasonable sentence.
Enrolling in Diversionary Programs in NJ
Enrolling in Diversionary Programs in NJA diversionary program, such as Pretrial Intervention (PTI) or Conditional Discharge, is a possible option for a person hoping to avoid a conviction for a first-time drug offense.
PTI involves following certain requirements as defined by the judge based on the facts of the case. A person who enrolls in PTI may be asked to attend counseling, take random drug tests, and even undergo job training.
Conditional Discharge requires a person to go drug-free and crime-free for a period of time (usually 6 months to 1 year). Other restrictions and rules may also be required of the person enrolled in this program.
Those who successfully complete a diversionary program will have the charges against them dropped—no criminal record, no jail time. Failure to complete the program may result in the case going back to trial and/or, in some cases, result in a conviction.
Diversionary programs are difficult to get into. Even those who are well qualified are not always admitted due to limited availability. A person should always consult with an attorney before getting one’s hopes up of being accepted into a diversionary program.
Expunging a Drug Possession Conviction
Expunging a Drug Possession ConvictionThose who have been convicted of drug offenses, including possession, will suffer the consequences of having a criminal record. However, a person who can go 4 to 6 years without committing further offenses can petition the court to have the conviction expunged.
A criminal record can only be expunged if it has five or fewer disorderly persons offenses. Alternatively, a record can have one indictable offense (felony) and no more than three disorderly persons offenses. In addition, many serious offenses can render a person ineligible.
Expungement paperwork is complicated and requires that the person make the case for having the record expunged. It is highly recommended that a person get help from an attorney with experience filing expungements in order to maximize the chances of the record being cleared.
Frequently Asked Questions
Frequently Asked QuestionsMost Possession charges are indictable offenses (equivalent to a felony in other states). Possession of less than 50 grams of marijuana is a disorderly persons offense (equivalent to a misdemeanor).
First-time drug offenders face jail time and other penalties. A person should not expect too much leniency for a first-time drug offense in NJ.
If a person is caught with drugs by a police officer who then asks questions, that person is under no legal obligation to answer. In fact, the less one says, the better. However, one should always be polite to the officer. Doing so is in a person’s best interest. Remember, do not sign anything and do not waive any constitutional rights. These rights are the only safeguards a person will be given. Be sure to invoke them when necessary. Most importantly, one should respectfully tell the officer that he/she is going to leave unless he/she is actually under arrest. If the officer does arrest someone, he/she should immediately invoke the right to an attorney and not answer any questions.
It is never advised to run away. Under New Jersey law, anyone who runs can be considered a “fleeing suspect.” This means the officer will be given the legal authority to do things that would normally require a warrant without needing to first obtain one. Moreover, fleeing usually gives an officer probable cause that criminal activity is afoot. Therefore, once someone flees, the officer can search his/her person, enter any building he/she enters, arrest him/her, etc.
A police officer can only conduct a pat down of clothing if it’s suspected that someone is armed and dangerous. Also, in most cases, he can only pat down for weapons, not drugs. However, if someone gives the officer a reason to suspect that someone has drugs on him/her, this constitutes probable cause that could give rise to a lawful pat down and search. The key here is to stay calm, always be polite, and never give the officer a reason to suspect criminal behavior.
Drug court combines criminal justice and medical treatment models to deal with drug-related offenses. They understand that incarceration is not always the most effective way for breaking cycles of drug addiction and crime, especially for first-time offenders. Therefore, drug courts stress a more cooperative approach between all of the parties involved (i.e. prosecutor, defendant, judge, etc.). Unlike in regular criminal court, rehabilitation is typically favored over serving a prison sentence.
If an officer catches someone possessing drug-related paraphernalia, he/she will be able to charge the suspect with a separate possession offense (i.e. N.J.S.A. 2C:36-2). However, depending on the surrounding circumstances, the officer might be able to arrest the suspect for possession of drugs even if no drugs are present. It is imperative to avoid getting saddled with two criminal charges (i.e. possessing paraphernalia and possessing drugs).
A person does not need to actually have the drugs on him/her at the exact moment that the officer makes the arrest. If the officer sees that a suspect had drugs at one point, even if those drugs were flushed down the toilet or thrown away, he can arrest the suspect for possession. Granted, it will be much tougher for the prosecution to prove their case without the actual drugs, but the person can still be facing serious charges that could land one behind bars.
New Jersey allows a person to get a Conditional Discharge or go through Pretrial Intervention (PTI) as long as he/she shows a commitment to being rehabilitated and meets certain criteria. Gaining admission to a PTI program and fully cooperating with it will allow someone to avoid the criminal court process altogether. Anyone who successfully completes the program can have the charges dismissed.
A conditional discharge is a diversionary program that New Jersey makes available to many first-time offenders charged with possession of less than 50 grams of marijuana. In order to receive a conditional discharge you must remain offense-free for the duration of a court-directed period of time, which is usually 6 months to 1 year, while being subjected to random drug testing. Anyone who successfully completes the program can have the conviction expunged.
CDS stands for “controlled dangerous substance” and is the catch-all phrase for just about any and all drugs imaginable.
If drugs are found in a person’s car, police are going to presume that the drugs belong to the vehicle owner. However, if there are multiple people in the vehicle, things become more complicated.
Police can search a person’s vehicle only if the owner gives permission, if the officer has a warrant, or if some exigent circumstances are present. An exigent circumstance may include seeing drug packages and/or paraphernalia, smelling drugs, or witnessing suspicious behavior, such as a person stashing something under the car seat.
However, if a person is arrested for driving while suspended, then the vehicle may be towed and an inventory taken. This inventory search is legal and any drugs discovered can be used to charge a person with possession.
As long as the officer does not have a warrant and no exigent circumstances are present, then a person can refuse to allow a search of a home or vehicle.
2C:35-10b states that any person who uses or is under the influence of an illegal substance or regulated substance without a prescription can be charged with a disorderly persons offense. If convicted, he/she can be sentenced to up to 6 months in jail.
Who Should I Contact?
Who Should I Contact?If you or a loved one was charged with drug possession in New Jersey, contact the attorneys of Rosenblum Law today. Our highly skilled criminal defense attorneys have helped people in many similar situations. We can defend your constitutional rights, fight to keep you out of jail, and do what he can to have your possession charges dismissed. E-mail or call us today at 888-815-3649.
MORE INFORMATION ABOUT DRUG POSSESSION CHARGES IN NJ
Last updated: May 16, 2012
